The Senate and House Reports on the Trade Promotion Authority bills working through Congress include important, albeit limited, steps toward endorsing balanced intellectual property norms in trade policy.
The Senate report, released today, states:
The Committee has updated section (5)(A)(ii) to emphasize the critical importance of including in U.S. trade agreements IP provisions that facilitate legitimate digital trade. In particular, this section reflects the view of the Committee that U.S. trade agreements should contain copyright provisions that provide adequate and effective protection for U.S. right holders as well as foster an appropriate balance in copyright systems, inter alia by means of limitations and exceptions consistent with the internationally recognized 3-step test.
The House Report contains similar language.
This is a first for a Trade Promotion Authority bill. Although the bills themselves do not change the mandate the U.S. to pursue agreements that “reflect a standard of protection similar to that found in United States law,” the Report language guides USTR to interpret the “protection” of U.S. law to include user and public interests. It would certainly be more useful, however, to have included that clarification in the bill itself.
The report language should be seen as further evidence of the growing consensus for balance in intellectual property policy. In particular, the language supports (but probably does not expand) the recent USTR policy of including a mandate to “seek to achieve balance” in copyright laws in the Trans Pacific Partnership Agreement.
